EARTH MATTERS

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Ian Mason

06 August 2012

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Ian Mason, Barrister; Principal, School of Economic Science, London

Abstract

Law is the most potent means by which societies embed collective values in social arrangements. In civil law it is customary to embed values of justice, freedom and democracy but in the economic sphere the embedded values are quite different. Corporate and property laws in most modern societies ensure that economic considerations almost always have precedence over aesthetic, ecological, environmental and spiritual values. The effect is legal legitimisation of environmental devastation with serious cost to human and other-than-human health and wellbeing. A new approach to law called Wild Law supported by a new jurisprudence called Earth Jurisprudence seeks to redress this imbalance by doing for Nature what we already do for every kind of corporation, namely conferring legal status and remedies. The aim is to secure a mutually enhancing relationship between people and the natural world. This paper explains the rationale, practicalities and possibilities of this new approach.

Ian Mason is a practising UK barrister whose interest in Earth Jurisprudence stems from life-long studies with the School of Economic Science in London of which he is Principal. Ian is one of the leading voices in the development of Earth Jurisprudence working with the Gaia Foundation, the Gaia Learning Centre, Schumacher College, the UK Environmental Law Association and Wild Law UK. He is a contributor to the recently published Exploring Wild Law: The Philosophy of Earth Jurisprudence. He writes and lectures frequently on Earth Jurisprudence and Economics-with-Justice.

EARTH MATTERS

Law is the principal means by which countries and societies embed their collective values in their social arrangements. Among the most deeply embedded values in the UK are the twin ideas of civil freedom and civil justice. Our civil freedoms are upheld by long standing laws which secure freedom of speech, freedom of movement, freedom of mind and conscience and their like. Our sense of civil justice is found in the equally well established right to a fair trial, and the principle of equality before the law. All of these have developed over centuries of judicial decisions and creative interaction between judicial, legislative and political systems.

The last fifty years has seen the development of an elaborated law of human rights based on a deeply held sense of the value of the individual human being. The widespread consciousness of this value is the product of two horrific world wars, the appalling inhumanity that accompanied them and the mind sets that caused them.

In more recent and more peaceful times, the same values are found in the numerous statutes outlawing discrimination on grounds of race, gender, sexual orientation, age and disability. In all these areas the laws embody widely held values and express a long standing sense of civil justice. In every case they protect individuals from the misuse of power by governments or corporations.

But in the field of economics a very different sense prevails. It can be said that our laws carefully and systematically exclude any possibility of economic justice and severely limit economic freedom. Economic justice can be summarised in the proposition that before anyone has more than they need to support themselves and their families, everyone should have sufficient to support themselves and their families. It can fairly be said that our laws and legal system actively developed to prevent this by allowing some people to obtain and retain for their own purposes elements of Nature which everyone needs, in particular access to land, a term which includes the entire environment. Economic freedom is freedom from dependence on economic powers over which the individual has little or no control. Even the possibility of such freedom is rarely given serious consideration.

In what we now call the developed world a transformation was accomplished by agricultural and industrial revolutions from an economy based on self-sufficient communities to an economy based on dependence of the great majority upon relatively few owners of the essential economic factors – land and capital. In England, this began with the Norman Conquest, perhaps the greatest land grab in history, and was completed with the two great waves of land enclosure in the 16th and 18th centuries. The result has been severe limitation on the power of individuals to exercise the freedom to apply their own labour for economic purposes on their own terms. Most working populations in developed economies have little choice but to accept the conditions, including wages and working hours, set for them by others or by a market which is carefully weighted to minimise their capacity.

Today we see the same economic developments across the globe. Huge ‘land grabs’ are displacing formerly self-sufficient communities across Africa, India, China, Indonesia and South America. Every day brings news of more dispossessed people – people whose traditional lands have been taken from them - falling into poverty and starvation or being forced into almost slave-labour conditions in all of these places. The same culture of dependency which characterises developed world economies has spread to the developing world and will soon have taken it over.

Furthermore, it is economic pressures and the demands of the prevailing, growth based, economic system that lie at the root of many modern environmental problems. Pollution, loss of bio-diversity, species loss, de-forestation and climate change all have economic demands at their heart and human laws and legal systems assent to the activities that cause them. This is most obvious in the fields of property and corporate law. In England, as in most democratic states, land, or property, law allows private ownership of the environment to exist without consideration of the complete dependence of all people and species on the very land that is reduced to private ownership. Perhaps even more pernicious, it permits owners to treat land as they wish with little or no obligation to ensure that it is maintained in good condition.

The contemporary land grabs across the globe, for example, are not accomplished by armed bandits. They are accomplished by government regulations enforced by armed police. They are sanctioned by the laws of the land, just as the enclosures were in the United Kingdom. ‘Enclosure’ is simply another word for privatisation. Land enclosure, or land grabbing as it is now termed, is the privatisation of the common resource upon which all economic activity depends, the land which includes or gives access to the whole natural environment. Wherever it happens, land privatisation carries with it legal rights conferred and protected by governments, courts and legal systems.

In conjunction with this, corporate, or company, law creates artificial entities which exist in law independently of the people who establish, operate and own them. These entities have rights just as people do, including the right to own property, including land, on the same terms as real people and the right to sue and be sued in courts of law. Unlike people, they also have the capacity to live and exercise their rights forever.

One devastating effect of this is to de-personalise responsibility. It is no longer people who are responsible for environmental damage and destruction, it is corporations, which are legal entities created and given rights and obligations by law.

In the UK, as in most jurisdictions, there is a legal obligation under the Companies Act that requires directors of companies to act at all times in the best interests of the company. This is interpreted in law as meaning that they are required to maintain shareholder value and the duty to have regard to environmental considerations is subordinate to this requirement. This is the case with many aspects of environmental law: environmental needs take second place to human economic requirements and laws and legal systems everywhere maintain these priorities.

But all around the globe lawyers, economists and environmentalists are questioning these priorities. Climate change and environmental spoliation everywhere are threatening both economic and ecological balance to the extent that human populations are becoming economically unsustainable and non-human populations of every species are threatened by encroachments of human demands. There is an urgent need to recognise that law, economics and ecology cannot be seen in isolation. They are all aspects, indeed essential pillars, of an almost unrecognised science of government or political economy whose fourth, most stabilising and uniting pillar, is ethics, or philosophy.

The leading lesson of philosophy, or ethics, is two-fold. The first principle, which it offers in common with ecology, is that everything is related to everything else like parts in a single body. Humanity and the universe in which we are sustained are not separate from each other; and people do not exist only as individuals. We only exist in the context of human and environmental communities with which we constantly interact and on which every individual depends. This means that our actions at every level, social, economic and environmental, have to be considered in the context of everything that is affected by them: and where we have the power to modify or destroy, our actions have to be tempered by a duty of care for anything and everything affected by our actions.

The second principle is justice, which is also two-fold. Its first aspect is personal and individual, summed up as ‘the constant will to render to everyone their due’. The second aspect, which depends on the first, is social – the recognition that everyone is due all that they need for a fulfilling and satisfying life coupled with the political will to make that possible.

Earth Jurisprudence is the lawyers’ contribution to social and personal justice. It is a philosophy of law founded on the recognition of a duty of care for the Earth and all its inhabitants that seeks to discover and describe the natural limits to human action in that context and to discover how fulfilling individual and community lives can be sustained within those natural limits. Its personal aspect is the human power to discriminate and restrain human demands for the sake of larger interests. Its social aspect is to understand the extent to which the law can govern and restrain human agencies both individual and collective so as to confer freedom under law without over-exploitation or misuse of the natural world.

The formal law developed from Earth Jurisprudence is called Wild Law. Wild Law seeks to embed Earth Jurisprudence in formal law just as human rights law seeks to embed principles of humanity in formal law. One way of doing so is by doing for Nature what we already do for artificial corporations and giving her legal status for her own protection. This is based on the sense that human beings have a duty of care towards the Earth and that such a duty has to have priority over economic considerations because of our complete dependence on Nature for all economic and social life. The idea is to embed a valuation of Nature into law in the way that other values are embedded in law.

Legal systems often employ the idea of rights as a means of defining duties. Human rights can properly be seen as a way of describing the duties of all-powerful governments towards citizens. Wild Law seeks to describe and enforce the duties of people, governments and corporations towards Nature by recognising and defining the rights of Nature and by giving Nature legal status so that such rights can be enforced.

In April 2010 the World People’s Conference on Climate Change and the Rights of Mother Earth drafted and adopted a Declaration of the Rights of Nature including the rights to exist, to habitat and to play its role, as well as a statement of the obligations of human beings to Mother Earth. All that remains is to win international acceptance of the need for laws and legal systems to place a moral (as opposed to ‘economic’) value on Nature and for human beings and institutions, including corporations, to be required by law to act accordingly.